Free Speech and License Plates

O.K., Steve, I'll bite....

We English teachers have a keen interest in free speech—it's our job to teach kids how to use it and use it well. I thus note with interest the ruckus over the DMV's demand that Sierra Club organizer Heather Moriah surrender her vanity plate, which reads "MPEACHW". [Photo by Steve McEnroe, Rapid City Journal]

The original Rapid City Journal article is getting plenty of coverage elsewhere—Dakota War College, Dakota Voice, and about 90 other results on a general Google search on "Moriah" and "MPEACHW". The RCJ article itself has garnered about 400 comments, 26000+ words worth of comment since Thursday. Just a few notes from the lake:

First, much as this First-Amendment hawk hates to say it, DMV director Deb Hillmer may rightly protect herself with the letter of the law. The state is not obliged to let citizens express themselves on their license plates. Denying individuals the opportunity to express a message with seven letters on a license plate does not deny them the opportunity to express the same message in some other form in the same venue (e.g., bumper stickers or my preferred method—you tell me which works better).

Nonetheless, a vanity plate is a unique form of expression. At the very least, they say, "Hey! I'm serious enough about this message that I'm willing to spend an extra $25 on it!" Seeing that message in shiny red, white and blue where we usually expect a string of semi-random numbers and letters has an impact that a bumper sticker does not. Plus, the vanity-plate owner isn't asking taxpayers to subsidize a message they disagree with; each plate holder pays for her own plate and any message thereupon, thus absolving the state and the rest of us from responsibility for any message upon it. If Moriah wanted to take the DMV to court, she'd have some reasonable constitutional arguments and a lot of citizens willing to back her up.

The state does have the authority to reject requests for patently obscene or defamatory plates vanity plates. (I'd include plates that pose a clear and present danger to public safety, but I'm left scratching my head trying to think of seven-character sequences that could create national security risks or incite violent revolution.) However, even there, the state faces the classic challenge of determining what constitutes obscenity. Does one complaint nullify the First Amendment? Rapid City civil rights lawyer Patrick Duffy (fresh from the shower and negotiations over the next Dallas sequel), offers the following very important answer:

Rapid City lawyer Patrick Duffy said there’s plenty of reason to complain. Duffy, who has worked on key civil rights cases involving American Indian voting issues, said action by the state means that any personalized plate must be recalled because of a single complaint, no matter what the message.

“What this means is that every atheist can now wipe out anything that seems to refer to God,” Duffy said. “Will vanity plates for members of the armed forces suddenly be declared offensive if they offend a single pacifist? It’s absolutely preposterous.”

Even obscenity must be judged by the mores and standards of a community, not just one offended individual, Duffy said.

“Here, all we need is one lone citizen who is apparently invested with the complete authority to determine what is good taste and decency for all the rest of us,” he said. “It seems a little tyrannical to me.” [Kevin Woster, "State Looks to Pull Anti-Bush License Plate," Rapid City Journal online, May 3, 2007]

Catch that? One complaint does not obscenity make. And even if the DMV received 5000 complaints about the plate, in this case, we're talking a clearly political message, not vulgarity. Free speech always offends someone. That's why the First Amendment exists: to protect free expression against the tyranny of the state, the mob, or one grouchy crackpot with time to make trivial complaints.

Update 2007.05.07: DMV backs down! Morijah wins! See above!